We can read the U.S. Supreme Court justices’ handwritten notes during their deliberations? What will this mean for legal analysis and where do I sign up? -CCE

SCOTUS Notes is the newest crowdsourcing project under the Zooniverse platform originated at the University of Minnesota. ‘In this project, members of the public transcribe handwritten notes from U.S. Supreme Court justices. Unlike members of Congress, justices cast their votes in complete privacy during weekly conference meetings. Only justices are allowed in the Chief Justice’s conference room when they discuss, deliberate, and make initial decisions on cases that focus on some of the nation’s most pressing legal issues. The only record of what has been said, and by whom, is provided by the handwritten personal notes the justices themselves take during conference. These crucial documents detail the discussions and debates that took place in thousands of cases spanning multiple decades.’

The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

In the legal writing world of contracts, legislation, and case law, legal writers debate about the meaning of the word “shall.” Many legal writing scholars have argued that “shall” means “must” without exception, and that is what I was taught in paralegal school. Professor Wojcik makes a convincing argument for dropping the ambiguous “shall” in favor of words that leave no question about what they mean. -CCE

Who Wins in the Supreme Court? An Examination of Attorney and Law Firm Influence, by Alan Feldman, University of Southern California, Political Science, SSRN.com (Date posted: August 18, 2015 ; Last revised: August 21, 2015)

This paper is a detailed analysis of what type of legal writing and briefs from 1946 through 2013 have been the most influential with the United States Supreme Court and the lawyers who write them. Interestingly, lawyers who write short sentences in the active voice and who use fewer words than the majority of brief writers are the most successful. It is a fascinating read, and strongly recommended. -CCE

We have a long history of judges saying that (1) little errors in a brief betoken bigger mistakes, (2) less is more, and (3) good briefs demand little physical or mental effort from the reader. Even so, briefs in most courts are astonishingly ill-proofread, they are rarely tight, and lawyers seldom confine themselves to two or three points. There’s a disconnect between what judges say they want and what lawyers give them. Curious.

There’s also a tendency to disbelieve things that can’t be scientifically proved. Hence I’ve heard lawyers say they don’t care so much about what judges say they find persuasive in written arguments. Those judges might not actually know what motivates them, the skeptical lawyers say. They want proof.

So let’s take the three points mentioned at the outset and see whether, when it comes to judging, there’s any scientific evidence to back up the anecdotal evidence that good writing enhances persuasion. We’ll use the findings of Nobel laureate Daniel Kahneman, the Princeton psychologist and economist who wrote a superb book: Thinking, Fast and Slow. What he says is most illuminating. . . .

Asked to name the world’s best opinion writers, traditionalists might rattle off Lord Denning, Learned Hand, or Oliver Wendell Holmes. Modernists often prefer Antonin Scalia or Richard Posner. And the trendy might cite new kids on the block like Lord Sumption or Elena Kagan.

Those august names all deserve heaps of praise. But the fame that these judges enjoy raises questions of its own: Can you write a ‘great’ opinion if you’re a judge who’s not a household name, or even especially influential? And can you write a ‘great’ opinion in a case that’s not a high-profile constitutional crisis, but just another run-of-the-mill dispute in an overflowing docket?

I say ‘yes’ on both counts. No matter how routine a case, and no matter how little time you have, you can write a great opinion. It may not be ‘great’ for the ages, but it can offer readers a clear, accessible, and easy-to-follow analysis of your reasoning, with even a bit of flair or personality for good measure. . . .

Knowing how to use book s is still one of them according to a new article by Professor Patrick Meyer, Director of the Law Library at Detroit Mercy School of Law. The article, called Law Firm Legal Research Requirements and the Legal Academy Beyond Carnegie, is available at 35 Whittier L. Rev. 419 (2014). From the introduction:

According to quantitative research conducted by Thomson West (now Thomson Reuters), new associate attorneys can expect to spend 45% of their time conducting research. Yet despite this high percentage, criticism of the research abilities of new associates persists. . . .

There have been a handful of important recent studies on practice skills that post-date the Carnegie Report, and they are reviewed in this article. All of these studies support a stronger emphasis on legal research training in law schools, and all but one either suggest, or directly call for, an integrated approach where some tasks are taught in both the online and print formats. All but one of these studies surveyed practicing attorneys. . . . All of these studies show that legal academia must devote more time to teaching legal research, and all but one support my conclusions: that attorneys still use books to conduct research, book usage occurs much more than most people think, and law schools need to teach both online and print-based research for some tasks.

New attorneys frequently lack basic knowledge of how to use research resources, yet this knowledge is the link between legal research and legal analysis. . . In short, law schools can do a better job at teaching legal research.

Part II of this article begins with a brief review of the history of legal research deficiencies in the law firm setting and progresses to a summary of several new studies on law firm research practices and abilities. . . . In Part III, I propose a three-part plan to remedy the lack of research acumen amongst new attorneys. First, law schools must assure that all students receive an appropriate amount of basic research instruction in the first year curriculum, to include some print-based research instruction. Second, Advanced Legal Research must be a required course. Finally, I would like to renew the call to include a research component on each state’s bar exam. [Emphasis added.]

Bryan Garner’s latest article in in the ABA Journal is titled Ten Tips for Better Legal Writing. Some Garner of his tips are especially appropriate for law students, who could appropriately paste ‘Don’t rely exclusively on computer research’ on the wall by their work space. That would serve as a reminder that unfocused computer searches are like a box of chocolates–you never know what you’re going to get. Garner also advises legal writers to be neither too tentative nor too cocksure in their conclusions, both of which are hazards for beginning law students. And Garner’s tenth tip would improve the professionalism of many a student paper: ‘Proofread one more time than you think necessary.’

Introduction

In a world where circumstances never changed and where every judicial decision was unassailably correct, applying the doctrine of stare decisis would be a breeze. Fidelity to precedent and commitment to sound legal interpretation would meld into a single, coherent enterprise. That world, alas, is not the one we live in. Like so much else in law, the concept of stare decisis encompasses a series of trade-offs-and difficult ones at that. Prominent among them is the tension between allowing past decisions to remain settled and establishing a body of legal rules that is flexible enough to adapt and improve over time.[1]

Notwithstanding pervasive disagreement over the application of stare decisis to particular disputes, the doctrine is well established in American jurisprudence.[2] Indeed, the Supreme Court has gone so far as to describe stare decisis as indispensable to the rule of law.[3] But as Jeremy Waldron skillfully reminds us, justifying the doctrine requires more than platitudes.[4] Even a proposition as fundamental and seemingly intuitive as the ability of stare decisis to promote the rule of law conceals a considerable amount of analytical nuance. Professor Waldron concentrates on developing what we might think of as the rule-of-law case for precedent. Central to his project is the recognition that rule-of-law benefits arise at several distinct points along the path from initial ruling to subsequent application. The touchstone is the principle of ‘generality,’ pursuant to which individual jurists subjugate their personal beliefs to the vision of a unified court working across space and time to fashion generally applicable norms.[5]

In this Essay, I wish to build on Professor Waldron’s thoughtful analysis by saying something more about the other side of stare decisis. The rule-of-law benefits of stare decisis are invariably accompanied by rule-of-law costs. In light of those costs, the ultimate question is not whether there are ways in which stare decisis promotes the rule of law. Rather, it is whether stare decisis advances the rule of law on net. Some departures from precedent can promote the rule of law, and some reaffirmances can impair it. Even if the rule of law were the only value that mattered, excessive fidelity to flawed precedents would be cause for concern.[6] That rule-of-law ambivalence, I will suggest, should be brought to bear in calibrating the strength of deference that judicial precedents receive. . . .

A nice breakdown on how to brief a case (not to be confused with writing a legal brief for the court) for paralegal and law students. I would add “judgment” at the end of the steps – the decision made by the court (e.g., affirmed, reversed and remanded, etc.). If you are interested in legal writing and have never learned how to brief a case, I recommend it. It will help you learn how to identify the key facts of the case and how the court applied those facts to the law to reach its ruling. -CCE

[J]udge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered the Madison Lecture on Judicial Engagement at Columbia Law School. The lecture series, sponsored by the CLS chapter of the Federalist Society, brings distinguished jurists to Columbia to discuss topics relevant to the federal judiciary and the administration of justice.

(Perhaps we should put ‘at’ Columbia Law in quotation marks; Judge Posner actually appeared via video conference. That shouldn’t surprise, coming from a judge who lists The Matrix as one of his favorite films.)

In his talk, entitled ’How I Interpret Statutes and the Constitution,’ Judge Posner was his usual candid self. He offered commentary on two recent books about statutory and constitutional interpretation — books that he’s not a fan of.

The Dallas Bar Association Judiciary Committee recently hosted a panel discussion with three prominent appellate judges. Catharina Haynes is the only federal appellate judge in the Dallas-Fort Worth area. After years of sitting as a Dallas state trial court judge, she was appointed to sit on the Fifth Circuit Court of Appeals. Debra Lehrmann is the only Texas Supreme Court justice from Fort Worth. Along with Chief Justice Nathan Hecht, she is one of only two Texas Supreme Court justices who began judicial service in North Texas. After a distinguished career in a large Dallas law firm, Elizabeth Lang-Miers serves as a justice on the Fifth District Court of Appeals, which reviews the cases from Texas state trial courts in Dallas County and five other counties.

The three panelists offered a number of helpful tips for lawyers practicing before appellate courts. . . .